Wesela v. University of Texas Medical Branch at Galveston

899 S.W.2d 292, 1995 Tex. App. LEXIS 744, 1995 WL 149686
CourtCourt of Appeals of Texas
DecidedApril 6, 1995
DocketA14-93-01054-CV
StatusPublished
Cited by8 cases

This text of 899 S.W.2d 292 (Wesela v. University of Texas Medical Branch at Galveston) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wesela v. University of Texas Medical Branch at Galveston, 899 S.W.2d 292, 1995 Tex. App. LEXIS 744, 1995 WL 149686 (Tex. Ct. App. 1995).

Opinions

[293]*293OPINION

SEARS, Justice

(Assigned).

This is an appeal from a summary judgment in favor of appellee, the University of Texas Medical Branch at Galveston (UTMB). Appellant asserts two points of error alleging that the trial court erred in granting summary judgment because appellee had actual notice of appellant’s claims, or alternatively, because a fact issue exists as to whether appellee had actual notice of appellant’s claims in order to satisfy the notice of claim requirements of the Texas Tort Claims Act. Tex.Civ.PraC. & Rem.Code Ann. § 101.101 (Vernon 1986). We affirm the judgment of the trial court.

On December 10, 1987, UTMB doctors performed a suboccipital crainectomy on appellant to remove a brain tumor. Postoperative progress notes indicate that appellant advised her physical therapist she was experiencing numbness to the left side of her face. Other medical records show that appellant was experiencing a corneal abrasion to her eye when she returned from surgery. On March 22, 1988, UTMB doctors performed a second operation on appellant because of a reoccurrence of the tumor.

On October 24, 1989, appellant sent a letter to UTMB stating that she wished to pursue a claim for damage to her left third and fourth cranial nerves and severe damage to her cornea resulting from the December 10, 1987, operation. Appellant did not file suit for damages allegedly resulting from the first operation until February 5, 1990. On May 12, 1993, appellant filed a second amended petition adding a claim that UTMB’s negligence during the second surgery damaged appellant’s fourth, fifth and sixth cranial nerves and caused her to suffer numbness of the left side of her face and diplopia. UTMB moved for summary judgment contending appellant failed to comply with the Texas Tort Claims Act’s notice of claim requirements. Tex.Civ.PRAC. & Rem. Code Ann. § 101.101 (Vernon 1986). The trial court granted summary judgment for UTMB.

UTMB, a government entity, enjoys sovereign immunity and cannot be sued for damages, except in specific circumstances outlined in the Texas Tort Claims Act. Section 101.101 of the Act provides that a person injured by a governmental entity must give notice of a claim not later than six months after the date of the incident giving rise to the claim. Tex.Civ.PRAC. & Rem.Code Ann. § 101.101(a) (Vernon 1986). The notice must reasonably describe the damage or injury claimed, the time and place of the incident, and the incident itself. Id, However, the notice requirements do not apply if the governmental unit has actual notice of negligence that results in injury to the claimant. Tex.Civ.Prac. & Rem.Code Ann. § 101.101(c) (Vernon 1986).

In two points of error, appellant alleges that the trial court improperly granted summary judgment because UTMB had actual notice of her claims as a matter of law, and alternatively, that a fact issue exists as to whether UTMB had actual notice. We discuss both points of error together. In reviewing a summary judgment in favor of the defendant, we determine if the defendant has presented sufficient summary judgment evidence to establish that there is no genuine fact issue and that he is entitled to judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). In making this determination in normal summary judgments, we take all evidence favorable to the non-movant as true, indulge every reasonable inference in favor of the non-movant, and resolve all doubts in favor of the non-movant. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985). However, because appellant failed to comply with the statutory notice requirements, she must present some proof of negligence and resulting injury.

The undisputed facts show that appellant did not send notice of her claim for the December 10,1987, surgery until October 24, 1989, almost two years after the first surgery, and did not give notice of her claim for the March 22, 1988, surgery until May 12, 1993, over five years after the second surgery. Because appellant failed to send notice of her claim within six months as required by the Texas Tort Claims Act, her suit is barred unless UTMB had actual notice [294]*294of appellant’s claim. Tex.Civ.Peac. & Rem. Code Ann. § 101.101(a, c) (Vernon 1986).

Actual notice is normally a question of fact, which if disputed will preclude summary judgment. See City of San Antonio v. Schautteet, 706 S.W.2d 103, 105 (Tex.1986) (per curiam); Alvarado v. City of Lubbock, 685 S.W.2d 646, 649 (Tex.1985). However, UTMB is entitled to summary judgment if it provides the trial court with proof it did not have actual notice, and there are no genuine issues of material fact concerning actual notice. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). As summary judgment proof, UTMB presented an affidavit of Linda Vanwyk, its claim administrator, stating that appellee had no actual notice until appellant sent the letter in October 1989.

Appellant alleges UTMB’s negligence caused the following injuries: (1) facial numbness, (2) blurred vision, (3) corneal scratch, (4) severed cranial nerve, and, (5) diplopia. Appellant offered the progress reports following the first surgery and the deposition testimony of Dr. Eisenberg, the former Chief of Neurosurgery at UTMB, as summary judgment proof of actual notice of negligence.1 The progress reports did indicate that appellant complained of some facial numbness, blurred vision and a scratched cornea following the surgery. Dr. Eisenberg testified that sacrificing a nerve during the surgery was “unusual.” However, he testified that due to shifting of a tumor, and difficulty in reaching a tumor for removal, the fact that a nerve was sacrificed “did not imply negligence.” The reports show that the tumor was in a very difficult position and the fourth cranial nerve was not healthy pri- or to the surgery. There is nothing to suggest damage to any other nerve. The doctor also testified that numbness was not uncommon following surgery to remove a brain tumor. As to the scratched cornea, it may have been caused by employees or agents of UTMB, by the bed covers or surgical drapes, or by the appellant in rubbing her eyes to improve the blurred vision. However, there is nothing in the summary judgment proof to suggest it was caused by the negligence of a doctor, nurse or technician of UTMB. Also, we note that appellant suffered from diplopia and impaired vision prior to the surgery. Accordingly, we hold that the occurrence of known side effects or known potential complications of brain surgery cannot rise to “actual notice” of negligence. In fact, according to the progress reports, the operation was considered a success.

Appellant relies on Alvarado v. City of Lubbock, 685 S.W.2d 646, 648-649 (Tex.1985) to show that a fact issue exists as to whether UTMB had actual notice of her claim. In Alvarado, the city was potentially liable for posting a sign with an incorrect speed limit unless the city could show that it did not have notice of the error.

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899 S.W.2d 292, 1995 Tex. App. LEXIS 744, 1995 WL 149686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wesela-v-university-of-texas-medical-branch-at-galveston-texapp-1995.